The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to medical aid benefits after November 8, 2023. A hearing was held on March 28, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to medical aid benefits after November 8, 2023.

Decision

The worker is not entitled to medical aid benefits after November 8, 2023.

Background

In a Worker Incident Report provided to the WCB on April 18, 2023, the worker reported injury to their left upper leg that happened at work, noting they could not recall the exact date of the incident. The worker described moving a loaded stretcher, when they put their left leg down, twisted, and felt a sharp pain. The worker reported limping afterwards but noted that walking helped to relieve the pain. The Employer’s Accident Report noted the worker reported the incident on April 3, 2023 and confirmed the mechanism of injury as reported by the worker. The employer noted the worker completed their shift the day of the incident.

The worker attended physiotherapy on April 24, 2023 reporting constant pain in their left hip/gluteal area that radiated down their anterior thigh and increased with prolonged walking, occasional sharp, shooting pain, and numbness and tingling into their foot. The physiotherapist noted reduced flexion and pain in the worker’s hip flexor and quadricep area and diagnosed sciatic/femoral nerve strain/impingement. The worker continued physiotherapy and in discussion with the WCB on June 15, 2023, advised they did not feel they were making progress despite attempting different treatment modalities.

At an appointment with a sports medicine physician on August 14, 2023, the worker reported ongoing left buttock, lateral hip, groin, and thigh pain since the accident. The physician noted the worker had received an injection in their hip in December 2022, which the worker indicated did not help, and another in January 2023, which did help. The physician recorded decreased flexion and internal rotation at the left hip, and decreased reflexes in the lumbosacral spine and diagnosed left hip osteoarthritis, progressed since December 2022, which they treated with a further injection. An x-ray of the same date indicated “The pelvic ring is intact. The sacroiliac joints demonstrate fusion more so on the left than on the right. Moderate degenerative changes are seen at the left hip joint. The left hip joint is congruent.” The physician also provided the WCB with the December 14, 2022 x-ray indicating “The pelvic ring is intact and the SI (sacroiliac) joints are normal. Early loss of joint space is seen at the hip joints.”

The treating physiotherapist requested an extension of treatment on September 6, 2023, noting the need for additional treatment for pain management treatment and continued strengthening. A WCB physiotherapy advisor reviewed the worker’s file on September 20, 2023 and concluded the worker’s need for ongoing physiotherapy did not relate to the April 3, 2023 workplace accident and the WCB advised on September 22, 2023 that it did not approve the requested extension of treatment. A WCB medical advisor reviewed the worker’s file on October 10, 2023 and concluded the diagnosis arising out of the workplace accident was “…left hip sprain on a background of degenerative left hip osteoarthritis/apparent chronic left hip pain.” Noting the natural history of recovery for hip sprain was over the course of 4 - 8 weeks, the medical advisor concluded the worker’s current left hip difficulties did not relate to the workplace accident.

On October 26, 2023, the WCB medical advisor requested a radiologic review of the diagnostic imaging on the worker’s file to determine if the workplace accident could account for the change noted on the August 14, 2023 x-ray. On October 27, 2023, the WCB advised the worker it determined they recovered from their compensable injury and their entitlement to medical aid benefits would end on November 2, 2023. On November 1, 2023, the WCB radiology consultant noted their opinion that the diagnostic imaging findings were consistent with the progression of degenerative changes and not related to the workplace accident.

The worker requested Review Office reconsider the WCB’s decision, noting in their submission of November 21, 2023 that they continued to experience left hip difficulties and required further physiotherapy treatment to help deal with the pain and difficulties. Review Office determined on January 10, 2024 that the worker was entitled to medical aid benefits until November 8, 2023. Review Office noted the WCB medical advisor requested a radiological review of the diagnostic imagining, and those results were not placed to the worker’s file until November 1, 2023. As such, the worker’s entitlement to medical aid benefits should have been extended to November 8, 2023.

The worker filed an appeal with the Appeal Commission on January 19, 2024 and the Appeal Commission arranged a hearing.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury as a result of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid to a worker entitled to benefits that “…the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.”

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the " Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

Many workers who experience a workplace injury also have a pre-existing condition. The fact that the worker has a pre-existing condition does not disentitle them to compensation for their workplace injury. However, the workers compensation system is designed to compensate workers for workplace injuries, not all injuries. It is often necessary, therefore, to distinguish between a worker's pre-existing condition and their workplace injuries.

The Policy defines a pre-existing condition as a medical condition the worker had prior to their workplace injury. “Aggravation” is defined as when a worker’s pre-existing condition is temporarily worsened because of a workplace injury, and “enhancement” is defined as when a worker's condition is permanently worsened because of a workplace injury. The Policy outlines that when a loss of earning capacity is caused in part by a workplace injury and in part by a non-compensable pre-existing condition or the relationship between them, wage loss benefits are payable to the worker. The Policy further outlines that wage loss benefits will cease when a worker has:

1) recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition is not a compensable condition.

Worker’s Position

The worker appeared in the hearing on their own behalf. The worker made an oral submission in support of their appeal and provided testimony through their submission and through answers to questions posed by members of the appeal panel.

The worker’s position is that the workplace injury contributed to or caused the worsening of their left hip condition and that they were not recovered to their pre-accident condition by November 8, 2023, but continued to experience symptoms of and require treatment for that injury after that date.

The worker noted that despite the injury sustained in the accident, they continued working while being treated with physiotherapy. They described their job duties and the significant physical requirements, stating that they “never had a problem until after I got hurt where the pain started getting bad, and I continued to work, and maybe I should’ve [taken] the time off…but my job is very physically demanding with pushing, and pulling, and going down ramps.” The worker explained to the panel that before the accident their left hip pain was different than after the accident. The worker further described the mechanism of injury, noting it occurred when they locked their leg and turned to push away from a wall.

The worker noted they are scheduled for left hip replacement surgery in early May 2024 and that they are seeking further benefits to cover that procedure and the resulting time off and therapy required in recovery. The worker confirmed that it is their position that the injury sustained in the workplace accident caused a deterioration in their left hip condition, worsening the arthritic process already underway.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker's appeal arises from the WCB’s decision that the worker is not entitled to medical aid benefits after November 8, 2023. For the appeal to succeed, the panel would have to find that the worker continued to require treatment because of the compensable injury beyond that date. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel accepts and acknowledges that the worker sustained an injury to their left hip as a result of the workplace accident and that the worker did not sustain any loss of earning capacity after the injury occurred but continued to work until the present. We noted the initial physiotherapy diagnosis of “sciatic/femoral nerve strain/impingement” and that treatment continued in respect of that injury through to October 2023. The physiotherapy discharge report indicated no change in diagnosis and that recovery was satisfactory. The worker noted that despite treatment, they have not recovered to their pre-accident status.

The worker acknowledged the evidence indicates a prior diagnosis of left hip osteoarthritis but testified that the nature of their left hip pain was different after the injury than before. The panel noted the evidence that the worker received treatment for left hip pain beginning several months before the workplace accident occurred, with chart notes from December 14, 2022 indicating the worker attended with “Left buttock, lateral hip and groin pain started 6 weeks ago” after slipping on ice. Diagnostic x-ray imaging from that time indicated “Mild osteoarthritis changes both hips.” The treating sports medicine physician recommended physiotherapy and pain relief medication, with injections to be considered if symptoms did not improve, and the worker received such injections in December 2022 and January 2023. The evidence further indicates that when the worker returned to the treating sports medicine physician in August 2023, the physician confirmed the diagnosis of left hip osteoarthritis which x-rays indicated had progressed from mild to moderate since December 2022.

The panel considered the medical reporting which indicates a pre-existing diagnosis of left hip osteoarthritis, treated with multiple injections beginning before the accident. As noted by the WCB medical advisor in their October 10, 2023 opinion, the diagnosis accounting for the worker’s symptoms at that time was their left hip osteoarthritis and that “The mechanism of injury…was concordant with a left hip sprain on a background of degenerative left hip osteroarthritis/apparent chronic left hip pain. A material structural change to [the worker’s] left hip that can be currently accounted for on the basis of the April 3, 2023 [mechanism of injury] is not apparent.” The panel further noted that the medical advisor’s conclusion as to the lack of structural change to the left hip due to the accident is supported by the opinion of the reviewing radiologist.

The panel is satisfied that the evidence supports a finding that the worker’s left hip osteoarthritis is a pre-existing degenerative condition. Further, we are satisfied that the evidence does not support a finding that the mechanism of injury in the workplace accident impacted the worker’s pre-existing condition, neither as an aggravation nor as an enhancement of that condition. While there is evidence of a worsening of the degenerative condition between December 2022 and August 2023, the evidence before the panel does not indicate there is any causal relationship between the worsening of the worker’s pre-existing condition and the muscular injury sustained in the workplace accident.

We are further satisfied that the evidence supports a finding that the worker recovered from the left hip strain injury sustained in the workplace accident by November 8, 2023 and that further treatment of the worker’s left hip beyond that date relates to their pre-existing condition rather than to the injury from the accident.

Based on the evidence and on the standard of a balance of probabilities, we find that the worker is not entitled to medical aid benefits after November 8, 2023. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of April, 2024